The Commissioner of Central Excise @APPELLANT@Hash M/s. Indian Telephone Industries Limited

The Appellant/Revenue-Commissioner of Central Excise has filed these appeals u/s. 35G of the Central Excise Act, 1944 (for short ‘Act’)

against the Respondent/assessee - M/s.Indian Telephone Industries Limited (a Central Government Public Sector undertaking) purportedly raising the

substantial question of law about the adjustment/refund of the excess provisional duty paid by the Respondent-assessee.

The question as raised is whether such a refund/adjustment deserves to be made under erstwhile u/r. 9B(5) of the Central Excise Rules, 1944 or

the Respondent-assessee has to claim such refund by adopting the procedure u/s.11B of the Act establishing before the Revenue Department that the

incidence of duty has not been passed on to the customers, to avoid ‘unjust enrichment’ to the Respondent-assessee by making such

refund/adjustment.

The Respondent-assessee, a Government of India Undertaking, under the contract are the manufacturers and suppliers of telecommunication

equipments to the Department of Telecommunication (DOT) another Central Government Department which later on became BSNL again a

Government of India Undertaking during the relevant period of 1998-99 to 1999-2000 and at the time of removal of the goods and sale thereof to the

Department of Telecommunication/BSNL but since the final price of the goods sold were to be determined under the contract between the

Respondent-assessee and the purchasing Government Department of DOT/BSNL, the goods were allowed to be cleared on the basis of the

provisional assessment and payment of provisional duty by the Respondent-assessee for which Rule 9B of the Rules as it stood then required

determination u/r. 9B(5) of short duty, if any paid and the adjustment or refund of excess provisional duty, an order to be passed under Rule 9B(5) of

the said Rules.

The said Rule 9B(5) including its Proviso inserted w.e.f. 25.07.1999 as quoted by the learned Commissioner of Central Excise (Appeals I),

Bangalore, in his Order dated 21.08.2007 in CEA No.30/2017 & CEA No.62/2017 is quoted below for ready reference:

“Rule 9B(5) â€" When the duty leviable on the goods is assessed finally in accordance with provisions of these rules, the duty provisionally

assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed fall short of, or in excess of duty finally assessed, the

assessee shall pay the deficiency or be entitled to a refund, as the case may be.

 “provided that if an assessee is entitled to a refund, such refund shall not be made to him except in accordance with the procedure established

under sub-section (2) of section 11B of the Actâ€​ â€" (inserted on 25-7-1999)â€​

The Assessing Authority passed an order on 28.11.2002 vide Annexure-A under Rule 9B of the Rules but he did not determine the provisional duty

short paid in excess in the said order. That is how another order came to be passed by the said Assessing Authority vide Annexure-B on 29.12.2006 in

which the said Authority viz. Assistant Commissioner of Central Excise, Bangalore I Division, did not allow the adjustment/refund of

the excess provisional duty paid by the Respondent-assessee for the period in question and that is why the Respondent-assessee had to take the

matter further before the Commissioner of Central Excise (Appeals-I), Bangalore, who vide order dated 21.08.2007 vide Annexure-D in the aforesaid

appeal allowed the said adjustment/refund to the Respondent- assessee and also determined the short duty paid under Rule 9B(5) of the said Rules.

The operative portion of the Order passed by the Commissioner of Central Excise (Appeals-I), Bangalore, is quoted below for ready reference:

“ORDER

 I modify the impugned order no.C.No.V/85/17/9/2000.P.A, dated 29-12-2006, passed by the Assistant Commissioner of Central Excise, Bangalore I

Division, Bangalore to order adjustment of the duty paid in excess amounting to Rs.85,63,747/- plus the excess duty paid amounting to Rs.19,92,481/-

(i.e., Rs.28,04,513/- minus Rs.8,12,032/-) for which credit notes were issued for errors in billing pertaining to the same year 1999-2000, against duty

short paid amounting to Rs.6,66,91,963/- leaving a balance amount of Rs.5,61,35,735/- (i.e., Rs.5,53,23,703/- plus Rs.8,12,032/-) which was required to

be paid to the department, out of which the appellant had already paid Rs.5,53,23,703/- vide R.G.- 23 A part II Sl.No.751/- dated 18-05-2001 and the

appellant should pay the balance amount of Rs.8,12,032/-. The appeal filed by M/s. Indian Telephone Industries Limited, Bangalore is disposed of in

the above terms.

 Sd/-

 (Kamal Jyoti)

 Commissioner Central Excise

 Appeals-I, Bangaloreâ€​

The appellant-Revenue filed an appeal against the said order before the CESTAT, South Zonal Bench, Bangalore, which dismissed the appeal filed

by the appellant-Revenue on 25.10.2016 upholding the order passed by the learned Commissioner of Central Excise (Appeals-I), Bangalore, following

the Larger Bench decision of the Tribunal itself in the case of Hindustan Zinc Ltd. vs. Commissioner of Central Excise, Jaipur, (2015-TIOL-2427-

CESTAT-DEL).

The relevant para-7 of the order passed by the Tribunal is quoted below for ready reference:

“7. We have heard both sides and gone through the records in detail. We find that the decision cited by the learned advocate in the

respondent’s own case dealing with the finalization of provisional assessments for a different period, needs to be followed for the periods before

us. The Tribunal held as follows in the cited case:

“4. After hearing both the sides, we find that the short issue required to be decided is as to whether the duty excess paid by the assessee during the

period of provisional assessment is required to be adjusted towards he duty short-paid by them, upon finalization of such provisional

assessment. Learned counsel for the respondent has relied upon various decisions of the Tribunal laying down that such adjustment is required to be

done. However, reference can be made to latest decision in the case of Hindustan Zinc Ltd. vs. Commissioner of Central Excise, Jaipur : 2015 â€

TIOL â€" 2427 â€" CESTAT - DEL. wherein there was originally difference of opinion between the two Members of the Bench and the issue was

decided by the third Member. It was held that the assesse is entitled for adjustment of excess paid duty with the short-paid duty during the period of

provisional assessments, upon finalization of the assessments.

Inasmuch as the issue is decided by the majority decision of the Tribunal in favour of the assessee, we find no merits in the Revenue’s appeal.Â

The same is accordingly rejectedâ€​.

Since the facts involved in the present two appeals as well as the issues are identical, we find no merits in the Revenue’s appeals. By following

the earlier order of the Tribunal, we reject the Revenue’s appeals.

  Sd/-

 V. PADMANABHAN

 TECHNICAL MEMBER

 Sd/-

 S.S. GARG

 JUDICIAL MEMBER

Aggrieved by the same, the appellant-Revenue has preferred the aforesaid appeals before us viz. C.E.A.No.30/2017 & C.E.A.No.62/2017. The

connected appeal filed by the appellant-Revenue namely C.E.A.No.66/2016 arose from the order of the learned Tribunal dated 10.02.2016 arising

from the order of the Commissioner of Central Excise (Appeals-I), Bangalore, on 21.08.2007 relying upon the same Larger Bench decision of the

Tribunal.

The learned counsel for the appellant-Revenue has urged before us that in view of the insertion of the Proviso in Rule 9B(5) of the Rules w.e.f.

25.07.1999, the Respondent-assessee was entitled to a refund only after following the procedure under sub-section (2) of Section 11B of the Act and

therefore, the Respondent-assessee in the present case was required to satisfy the appellant-Revenue about the aspect of unjust enrichment, that it

has not passed on the incidence of provisional duty paid by it at the time of removal of goods.

This Court even called upon the Respondent-assessee to file an Affidavit in this regard also, which was accordingly filed in this Court on

01.07.2017. The said Affidavit is sworn to by Mr.K.Srinivasa Murthy, working as DGM-Finance, (Employee No.19590) of the Respondent-assessee,

ITI Ltd., Bengaluru. A Report was called from the appellant-Revenue on the said Affidavit filed by the Respondent-assessee.

The appellant-Revenue submits before us to the effect since the Respondent/assessee-a Government of India Undertaking has not provided any

proof contrary to the invoices produced by it as in proof of not having passed the burden excess duty, therefore the adjustment/refund as claimed by

the Respondent-assessee under Rule 9B of the Rules, cannot be allowed to it.

A counter to the said Report of the Department was also been filed by the Respondent-assessee on 11.06.2018 contradicting the submissions

made on behalf of the appellant-Revenue and in support of the orders passed by the two Appellate Authorities below granting the adjustment of the

excess provisional duty paid by the Respondent-assessee for the aforesaid period.

Learned counsel for the Respondent/Assessee-ITI Ltd., has relied upon the decision of the Honb’le Supreme Court in the case of

Commissioner of C.Ex., Mumbai-II vs. Allied Photographics India Ltd. 2004 (166) E.L.T. 3 (S.C.) in which the Hon’ble Supreme Court

categorically held that Section 11B of the Act and Rule 9B of the Rules operate in different spheres and referring to para 104 of the Constitution

Bench decision of the Hon’ble Supreme Court in the case of Mafatlal Industries Ltd., vs. Union of India (1997 (89) E.L.T. 247 (SC) it was held

that in cases where duty is paid under Rule 9B and refund arises on adjustment under Rule 9B(5), then such refund will not be governed by Section

11B of the Act. It was clarified that only if an independent refund claim is made and if any adjustment under Rule 9B(5) reagitating the same issue is

made, then only such claim will attract the provisions of Section 11B of the Act. The relevant extract of the judgment is quoted below for ready

reference:

“10. In the light of what is stated above, we now quote hereinbelow Para 104 of the judgment of this Court in the case of Mafatlal Industries Ltd.

(supra):-

“104. Rule 9B provides for provisional assessment in situations specified in clauses (a), (b) and (c) of sub-rule (1). The goods provisionally

assessed under sub-rule (1) may be cleared for home consumption or export in the same manner as the goods which are finally assessed. Sub-rule (5)

provides that “when the duty leviable on the goods is assessed finally in accordance with the provisions of these Rules, the duty provisionally

assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short of or is in excess of the duty finally

assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may beâ€. Any recoveries or refunds consequent upon the

adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or Section 11B, as the case may be. However, if the final orders

passed under sub- rule (5) are appealed against â€" or questioned in a writ petition or suit, as the case may be, assuming that such a writ or suit is

entertained and is allowed/decreed â€" then any refund claim arising as a consequence of the decision in such appeal or such other proceedings, as

the case may be, would be governed by Section 11B. It is also made clear that if an independent refund claim is filed after the final decision

under Rule 9B(5) reagitating the issues already decided under Rule 9B â€" assuming that such a refund claim lies â€" and is allowed, it would

obviously be governed by Section 11B. It follows logically that position would be the same in the converse situationâ€​.

At the outset it may be pointed out that in Para 104 there is nothing to suggest that payment of duty under protest does not attract bar of unjust

enrichment. Para 104 only, states that if refund arises upon finalization of provisional assessment, Section 11B will not apply.â€​

Though we find a reference to the aforesaid Hon’ble Supreme Court decision in the order passed by the Assessing Authority himself, namely,

the Assistant Commissioner of Central Excise, Bangalore I Division, vide Annexure-B dated 29.12.2006 in CEA No.30/2017 & CEA No.62/2017

towards the end of para-6 of the said order, but it seems the ratio of the said judgment has not been applied by the said Assessing Authority at all and

the said Authority still found it necessary for the Respondent-assessee i.e., ITI Ltd. to take recourse to Section 11B of the Act and to establish that no

unjust enrichment would be caused to it by such refund/adjustment of excess provisional duty and that is why the Respondent-assessee had to take the

matter further to the Appellate Forum and Commissioner of Central Excise (Appeals I), Bangalore, who granted the desired relief to the Respondent-

assessee and the second appeal filed by the appellant-Revenue also failed.

We are rather intrigued, and also little pained by the manner in which the different organs or Departments of Central Government have fought this

legal battle, which was although absolutely unnecessary. The very fact that the Central Excise Department made an allegation of ‘unjust

enrichment’ and wanted to enquire into it against the Government of India Undertaking (ITI Ltd.) is not palatable, especially because the customer

or purchaser of Teleequipments from the Respondent/assessee-ITI Ltd., was none else than Central Government Department (DOT) itself or BSNL

(yet another Government of India Undertaking). Therefore, who was getting “unjustly enriched†at whose cost is anybody’s guess, but still

the Excise Officer of the Central Government in the Central Excise Department chose to put public money in precious man hours and other resources

in the whirlpool of litigation at various Forums by taking a rather too narrow and pedantic approach in the matter. When the substance is lost at the

altar of technicalities, it can so happen, but such cases only re-emphasize the need of training the tax collectors in a better manner, for which a call

deserves to be taken by the Central Government only and not by the Constitutional Courts.

We are all the more concerned to note that once the controversy had been settled by the decision of Hon’ble Supreme Court on the

interpretation of the provisions of Rule 9B(5) of the Rules vis-Ã -vis Section 11B of the Act in the case of Allied Photographics (supra), but still the

Revenue Department is not satisfied with the order of the Excise Tribunal in same lines chooses to bring yet another appeal before this Court, fully

knowing that such appeal would lie only on the substantial question of law, which cannot be said to be arising as the controversy is already set at rest

by the Apex Court. This tendency of the Government Department to become an initiator of the frivolous litigation is yet another reason for expressing

such a concern by us in the present case. The Government authorities or Departments may be unwilling respondents or parties to the litigation before

the Constitutional Courts and they take a major share of that, but we cannot appreciate the Central Government Departments or Authorities becoming

the willing litigators or appellants in the Constitutional Courts by initiating such thoughtless and unnecessary appeals, writ petitions or revision petitions.

The various Litigation Policies framed by the Government to reduce the litigation in Courts do not seem to have touched the ground where these

authorities really work or take decisions to initiate such litigation. We are hopeful that the concerned persons in the Government will awaken to this

stark reality and take more well reasoned and considered decisions before launching a trail of litigation in the Courts of law.

We are not impressed with the arguments raised by the learned counsel for the appellant-Revenue before us that in view of the Proviso of Rule

9B(5) of the Rules w.e.f. 25.07.1999 merely because the order u/r 9B(5) came to be passed after the date in the year 2006, the Respondent-assessee

was required to take recourse of Section 11B of the Act. On the contrary, the adjustment/refund or short payment of provisional duty was required to

be determined by the Assessing Authority under Rule 9B(5) of the Rules as it then existed during the contemporary period of taxable event of

manufacture and removal of goods took place. The Rule governing the obligations or liability of the Respondent-assessee relevant on the date of

removal of goods and payment of provisional duty will apply, rather than the Rule as amended subsequently after which, the belated order came to be

passed by the Assessing Authority in the year 2006. Therefore, we find the said order of the adjudicating Authority was contrary to the ratio of the

decision of the Hon’ble Supreme Court which was though referred but not applied by the said Assessing Authority for reasons best known to him,

we do not approve of such a practice on the part of the authorities below.

In view of the clear decision of law settled by the Hon’ble Supreme Court in the case of Allied Photographics’ (supra), we are satisfied

that no substantial question of law arises in the present appeals filed by the appellant-Revenue and they are liable to be dismissed and the same are

accordingly dismissed. No costs.